IN THE CASE OF:	  

		BOARD DATE:	  6 November 2012

		DOCKET NUMBER:  AR20120004495 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests promotion to sergeant first class (SFC)/E-7 and back pay for the promotion packet he submitted while deployed in support of Operation Enduring Freedom in 2011.

2.  The applicant states:

* he did everything possible to get promoted to the next level; however, he was given inaccurate information regarding his Noncommissioned Officer Educational System (NCOES) waiver
* the delay in obtaining the waiver caused him to miss an earlier promotion opportunity
* he submitted his U.S. Marine Corps Sergeants Resident Course certificate that he had 2 years previously submitted to his S-1; it was added to his record and he was promoted to staff sergeant (SSG)/E-6 based on the course equivalency
* his G-1 told him he did not have constructive credit for the Warrior Leader Course (WLC)
* he sought the assistance of his Congressman and he was able to have his WLC constructive credit backdated and he obtained an Advanced Leader Course (ALC) waiver

*	this and his Standby Advisory Board (STAB) packet should have been enough to get his promotion packet compared to others selected for promotion by the February 2011 SFC promotion selection board
* the G-1 sent his STAB packet with waivers to the 99th Regional Support Command (RSC)
* the 99th RSC decided not to review his STAB packet

3.  The applicant provides:

* self-authored statements
* a letter from the Chief, Board Branch, Headquarters, 99th RSC, Fort Dix, NJ, dated 22 February 2011
* two letters from the G-1, Headquarters, U.S. Army Reserve Command (USARC), Fort Bragg, NC, dated 29 July 2011 and 28 November 2011
* extracts from his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File

CONSIDERATION OF EVIDENCE:

1.  After having prior service in the U.S. Marine Corps, the applicant enlisted in the U.S. Army Reserve (USAR) on 28 September 2007.  He completed training and he was awarded military occupational specialty 25B (Information Technology Specialist).  He is presently serving in the rank/grade of SSG/E-6.

2.  A DA Form 4187 (Personnel Action), dated 24 January 2011, shows the applicant requested an NCOES waiver.  The form further shows that he listed his highest level of NCOES as the WLC.

3.  The applicant's DA Form 2A (Personnel Qualification Record), dated 27 October 2010, shows completion of the WLC.

4.  A review of the applicant's interactive Personnel Electronic Records Management System record shows he completed the Sergeants Course, Class 3-97, at the Staff Noncommissioned Officer Academy, Marine Corps Combat Development Command, Quantico, VA, on 14 February 1997.

5.  The applicant's DD Form 214 shows he served in Afghanistan from 16 June 2010 to 7 May 2011 in support of Operation Enduring Freedom.

6.  During the processing of this case, an advisory opinion was obtained from the Chief, Personnel Management Division, Headquarters, USARC, Fort Bragg, on 30 April 2012.  The advisory official recommended disapproval of the applicant's request.  The official stated:

	a.  The applicant requested an ALC waiver for the promotion board held in February 2011.  A review of his records identified that he lacked the WLC.  The WLC was a prerequisite level of NCOES for his current grade.  On 22 February 2011, his promotion packet was returned and he was instructed on the proper procedures to request a course equivalency waiver for a WLC and an ALC NCOES waiver.

	b.  He failed to request the waiver; however, in an effort to assist him, USARC initiated the required paperwork for the applicant, resulting in approval of both waivers in June 2011.

	c.  Regulatory provisions allow Soldiers to request promotion consideration by a STAB if their records were not considered by a regular board, or if their record contained a material error when reviewed by a regular board.  The convening authority has approval authority for all requests for a STAB consideration.  The 99th RSC is the convening and STAB approval authority for the region in which the applicant resides.  The 99th RSC received his request for a STAB and determined that a material error did not exist that would warrant promotion consideration.  Therefore, no relief is warranted.

7.  On 1 May 2012, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  On 7 May 2012, the applicant submitted a rebuttal wherein he stated:

* he began the process of submitting his promotion packet in November 2010 while deployed to Afghanistan
* the issue of not having the appropriate WLC constructive credit for his U.S. Marine Corps Sergeants Course became the ultimate barrier for being considered for promotion and even threatened him being demoted
* a lack of awareness of the constructive credit policy is not clearly outlined in any regulation or enforced
* his situation was not adequately advocated to the STAB; therefore, the details associated with his request may not have been taken into full consideration
* his selection for promotion to SFC by this year's promotion board reinforces his conviction of the probability his previous promotion packet had potential for selection had there not have been a constructive credit issue
* his attendance in ALC and ALC-Common Core are above and beyond the NCOES requirements for his MOS and proof he was not attempting to skip out of his NCOES by obtaining a waiver and getting promoted while deployed
* the constructive credit issue could have been avoided had it been adequately communicated to the appropriate Army Reserve staff responsible for ensuring its completion

8.  The applicant provided self-authored statements, extracts from his AMHRR, and email showing attempts made to obtain his constructive service credit for course work completed while in the U.S. Marine Corps and attempts to submit his STAB packet.

9.  His available record contains no indication he was selected for promotion to SFC/E-7.

10.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.

	a.  Chapter 1, paragraph 1-27c, states Active Army, Army National Guard, and USAR Soldiers otherwise eligible for consideration but lacking the prerequisite level of NCOES as a direct result of operational deployment conflicts, or inability of the Army to schedule the course, will be granted a waiver of the NCOES requirement by the Deputy Chief of Staff, G-1.  The authority to grant waivers to USAR Soldiers is delegated to USARC, 7th Civil Support Command, 9th Mission Support Command for troop program unit (TPU) Soldiers, and the U.S. Army Human Resources Command for all Individual Ready Reserve and drilling Individual Mobilization Augmentation Soldiers.

	b.  Chapter 4 provides guidance on centralized promotions to SFC, master sergeant, and sergeant major, and provides rules on referral of cases to a STAB.  It states cases may be referred to a STAB upon determining that a material error existed in a Soldier's AMHRR when the file was reviewed by a promotion board.  Error is considered material when there is a reasonable chance that had the error not existed, the Soldier may have been selected.  STAB's are convened to consider records of those:

* Soldiers whose records were not reviewed by a regular board
* Soldiers whose records were not properly constituted, due to material error, when reviewed by the regular board
* recommended Soldiers on whom derogatory information has developed that may warrant removal from a recommended list

	c.  Chapter 5 prescribes policy for the promotion of USAR Soldiers assigned to TPU's, Army Reserve Elements, and multi-component units.  Paragraph 5-4 states an overstrength in NCO's in a pay grade will reduce or eliminate promotion possibility for NCO's in that grade and lower grades.  Paragraph 5-30 states that in no case will promotions be made to SFC and above for Soldiers in an overstrength status.  Transfers to and from an overstrength status will not be made for the purpose of increasing promotion opportunities.

11.  Army Regulation 600-8-19, paragraph 7-24, and U.S. Army Training and Doctrine Command Regulation 350-10 (Institutional Leader Training and Education), paragraph 2-16, both list the U.S. Marine Corps Sergeants Course (resident) as WLC constructive and equivalent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for promotion to SFC with back pay was carefully considered.

2.  Although the approval process for his NCOES waivers was lengthy, the applicant was granted NCOES waivers after the convening of the February 2011 promotion selection board.

3.  Records show the applicant met the WLC requirement prior to the convening of the February 2011 SFC promotion selection board and an NCOES waiver should not have been required for this course.

4.  Records further show the applicant was deployed to Afghanistan during the period 15 June 2010 through 7 May 2011.  In accordance with Army Regulation 600-9-19, he should have been automatically granted an ALC waiver.  Therefore, his records should be corrected to show he met NCOES qualifications with an ALC waiver prior to the convening of the February 2011 SFC promotion selection board.

5.  Although the 99th RSC determined a material error did not exist, the uncertainty of his promotion eligibility and delay in granting his NCOES waivers, which were ultimately unnecessary, caused him to miss a promotion opportunity.

6.  While he deserved fair consideration for promotion to SFC from an earlier selection board, the applicant's automatic promotion to this senior grade by this Board would not be fair to his peers or the Army.

7.  Therefore, notwithstanding the advisory opinion, the fair and just resolution of this issue would be to place his records before a STAB for consideration for promotion to SFC under the criteria used by the February 2011 SFC promotion selection board.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing he met the NCOES requirements with an ALC waiver prior to the convening date of the February 2011 SFC promotion selection board, and

	b.  placing his records before a STAB for promotion consideration to SFC/E-7 under the criteria used by February 2011 SFC promotion selection board.

2.  If selected, his promotion effective date and date of rank should be established as if he had been originally selected and he should be provided all back pay and allowances due as a result.

3.  If not selected, the applicant should be so notified.

4.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to his immediate promotion to SFC/E-7 with entitlement to back pay and allowances.



      _____________X__________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20120004495



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ABCMR Record of Proceedings (cont)                                         AR20120004495



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